IN THE SUPREME COURT OF TEXAS

444444444444

NO. 14-0362444444444444

CHRISTUS HEALTH GULF COAST (AS AN ENTITY, D/B/A CHRISTUSST. CATHERINE HOSPITAL, AND FORMERLY D/B/A CHRISTUSST. JOSEPH HOSPITAL), PETITIONER AND CROSS-RESPONDENT

v.

LINDA CARSWELL, RESPONDENT AND CROSS-PETITIONER

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ON PETITION FOR REVIEW FROM THE

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS

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Argued November 13, 2015

JUSTICE JOHNSON delivered the opinion of the Court.

This matter originated as a claim that CHRISTUS St. Catherine Hospital and others

committed medical malpractice causing a patient to die in the hospital. The pleadings were

eventually amended to add claims that the hospital took post-mortem actions to cover up the

malpractice, including failing to properly notify the county medical examiner of the patient’s death

and improperly obtaining the widow’s consent for a private autopsy. The jury did not find against

the hospital on the malpractice claim, but found that it improperly obtained the widow’s consent and

awarded damages on that claim.

Among the issues presented is whether claims that the hospital improperly obtained approval

from the decedent’s widow for a private autopsy were health care liability claims. The trial court

concluded they were not. It rendered judgment on the verdict as to that claim and included in the

judgment monetary sanctions previously assessed against the hospital for pretrial discovery abuse.

The court of appeals affirmed as to the damages award but reduced the amount of prejudgment

interest and vacated the discovery sanctions.

We address only three issues because they are dispositive: (1) were the claims based on the

hospital’s post-mortem actions health care liability claims; (2) if so, were they barred by limitations

because they were not asserted until over three years after the operative facts took place; and (3) did

the court of appeals err by reversing and rendering as to the discovery sanctions. We answer,

respectively, Yes, Yes, and No. Based on those answers, we reverse in part, affirm in part, and

render judgment for the hospital.

I. Background

Jerry Carswell was admitted to CHRISTUS St. Catherine Hospital in Katy on January 19,

2004, complaining of severe pain in his right side. His attending physician, Dr. Paul Cook,

prescribed narcotics to help with the pain, but Carswell reacted adversely to them and they were

discontinued. Late in the evening of January 21 and the early morning of January 22, Carswell began

experiencing severe pain again. Dr. Cook’s associate, Dr. Christina Pramudji, prescribed pain

medication, which the hospital nurses administered early in the morning of January 22. Later that

morning, Carswell was found lying across his bed unresponsive and without a pulse. Emergency

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code procedures were initiated, but attempts to resuscitate him were unsuccessful. Because of the

circumstances, Dr. Pramudji directed that a complete autopsy be performed.

Hospital personnel called Carswell’s wife, Linda, and asked her to come to the hospital.

When she arrived with her adult son, Jordan, Dr. Pramudji and Nurse Lee Anne Lightfoot told them

that Carswell had passed away. Linda testified that she asked several people at the hospital what

happened but was unable to find anyone who would give her more details about her husband’s death

than that he died in his sleep.

Upon hearing of Carswell’s death, Barbara Lazor, the director of acute care services at St.

Catherine, went to Carswell’s room to speak with Linda. According to Linda, she told Lazor she

wanted an autopsy because she wanted to know what happened; she wanted the autopsy performed

somewhere other than at St. Catherine, such as at the Harris County Medical Examiner’s Office

(HCMEO); and Lazor said St. Catherine would contact the HCMEO. Lazor, on the other hand,

testified that although she offered condolences to Linda, they did not discuss an autopsy; by the time

Lazor arrived at the hospital that morning, the HCMEO had already been contacted; and she neither

contacted the HCMEO nor was involved in obtaining Linda’s consent for the autopsy. According

to Linda, Nurse Patricia Elam said that the HCMEO did not take the case and would not be

performing an autopsy or investigating. Linda testified that based on Elam’s statement, she signed

a Consent for Postmortem Procedures form provided by the nurses and checked the box for a

complete autopsy with no restrictions. The form authorized doctors performing the autopsy to

remove, test, and retain organs or tissues from the body.

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Carswell’s autopsy was performed at St. Joseph Hospital, a CHRISTUS facility, as was

specified on the consent form. Dr. Jeffrey Terrel, a member of SJ Associated Pathologists, L.C., an

independent group of pathologists that contracted with St. Joseph to do autopsies, performed it. Dr.

Terrel was provided with Carswell’s medical records, including the consent form signed by Linda

and a blood sample taken from Carswell during the emergency code procedure (code blood). He

testified that it was within his discretion as the physician pathologist to determine what needed to

be done during the autopsy. One decision he made was that toxicology screening would not be

performed on the code blood based on Carswell’s medical history as documented in the medical

records. Dr. Terrel issued a preliminary autopsy report on January 26, 2004. However, he needed

to perform more tissue testing before he could issue a final report, so he retained approximately one-

third of Carswell’s heart for further study. Dr. Terrel testified that he was not required to, nor did

he, notify anyone that he retained some of Carswell’s tissues.

After she received the preliminary report, Linda was not satisfied that it showed the true

cause of her husband’s death and directed the hospital to preserve the autopsy specimens for further

consideration. Dr. Terrel interpreted Linda’s instructions as requiring him to stop testing tissue he

had retained because testing would have destroyed portions of it. As a result, and without fully

completing the autopsy, he submitted “anatomic findings” to Dr. Cook so Dr. Cook could determine

the cause of death. Although Dr. Cook listed the manner of death on the death certificate as

“natural,” Linda testified that when she spoke with him about the death certificate he seemed unsure

of the cause of death.

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On June 7, 2005, Linda, individually and as representative of Carswell’s estate, together with

her adult sons Robert and Jordan (collectively, the Carswells), sued CHRISTUS Health and

CHRISTUS Health Gulf Coast doing business as CHRISTUS St. Catherine Hospital. Their pleading

was short and direct. It alleged that they previously provided notice to the defendants “pursuant to

Tex. Civ. Stat. Ann. § 74.051, (2004), that Plaintiffs intended to assert a health care liability claim

arising out of the medical care rendered to Jerry Carswell.” The pleading outlined as “Facts” that

Carswell was admitted to and treated in St. Catherine until he was found unresponsive at 5:15 a.m.

on January 22, at which time it was “too late.” The petition alleged that “This action arises out of

the medical malpractice committed by CHRISTUS that ultimately resulted in the death of Jerry L.

Carswell on January 22, 2004,” and set out acts and omissions of the hospital that were allegedly

“medical negligence, which proximately led to the death of Jerry L. Carswell.” Finally, the petition

alleged “that the Defendants’ conduct and omissions constituted, among other things, medical

malpractice, negligence, gross negligence, negligence per se, malice, fraud, and breach of express

and implied warranties and breach of contract.” The damages sought were those accruing up until,

and resulting from, Carswell’s death. There was no mention in the pleadings of post-mortem

conduct or omissions, except for references to attempts to resuscitate Carswell.

On March 21, 2006, the Carswells filed a First Amended Original Petition in which they

added Drs. Pramudji and Cook as defendants, along with their practice group, Memorial Urology

Associates, P.A. The Carswells continued to assert that “This action arises out of the medical

malpractice committed by all Defendants that ultimately resulted in the death of Jerry L. Carswell

on January 22, 2004.” The Carswells filed a Second Amended Original Petition on October 31,

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2006, naming the same plaintiffs and defendants. The petition expanded the allegations of

negligence, but continued to specify that the family’s claims were for medical malpractice that

proximately caused Carswell’s death.

On January 5, 2007, almost three years after Carswell’s death, the Carswells filed their Third

Amended Original Petition, which included, for the first time, allegations of conduct by hospital

nurses and employees that occurred after Carswell’s death and claims of damages from that conduct.

The pleadings had sections entitled “VI. Medical Malpractice Facts,” “VII. Wrongful Death and

Survival Causes of Action,” “VIII. Post-Mortem Facts,” and “IX. Post-Death, Non-Medical

Liability and Insurance Improvement Act Causes of Action.” The Medical Malpractice Facts section

set out more detail than did the prior pleadings as to pre-mortem conduct by hospital personnel, but

did not allege any post-mortem facts beyond the failed attempts to resuscitate Carswell. The

Wrongful Death and Survival Causes of Action section specified that the Carswells were asserting

“wrongful death, survival, and medical malpractice causes of action against Defendants.” In the

Post-Mortem Facts section, the Carswells made allegations about conduct and statements that took

place after resuscitation attempts on Carswell ended. The section began with the allegation that

Linda and her son Jordan “were called back to the hospital after Mr. Carswell’s death” and “were

informed about the shocking and unexpected turn of events.” After that followed allegations in

nineteen separately numbered paragraphs detailing post-mortem interactions between the family,

doctors, nurses, and hospital personnel. That section of the pleadings was followed by section “IX.

Post-Death, Non-Medical Liability and Insurance Improvement Act Causes of Action,” in which

CHRISTUS Health, CHRISTUS St. Catherine Hospital, and CHRISTUS St. Joseph Hospital

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(collectively, CHRISTUS), three pathologists newly named as defendants, and SJ Associated

Pathologists were labeled “Post-Mortem Defendants.” The Carswells asserted “causes of action”

against the post-mortem defendants “based on [defendants’] conduct after the death of Carswell.”

The Carswells did not serve any additional expert reports in connection with the amended pleadings.

CHRISTUS responded, in part, by seeking summary judgment because the claims for post-mortem

conduct were recast health care liability claims (HCLCs) and were barred by the Act’s two year

limitations provision. The trial court denied the motion as to the new claims.

Pursuant to motions filed by the Carswells for discovery abuse sanctions, the trial court

imposed trial sanctions on CHRISTUS. Those included striking certain defensive pleadings,

precluding CHRISTUS from disputing conclusions in the autopsy report and death certificate, giving

a spoliation instruction in the jury charge as to certain evidence, and imposing $250,000 in monetary

sanctions against CHRISTUS.

The segregation in the Carswells’ pleadings of claims for pre-mortem conduct (pre-mortem

claims) from claims for post-mortem conduct (post-mortem claims) was maintained through several

more pleading amendments and through trial. The first jury question asked if the negligence of

CHRISTUS nurses proximately caused Carswell’s death. The jury answered “No,” and did not

answer questions two through seven, which addressed damages resulting from his death. Questions

eight through twenty-one asked about CHRISTUS’s post-mortem actions in obtaining Linda’s

consent for an autopsy, interfering with her right to possess and bury Carswell’s body, and her

damages from those actions. The jury found that CHRISTUS did not interfere with her right to

possess and bury Carswell’s body. However, it found that CHRISTUS acted negligently, committed

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fraud, and breached its fiduciary duty to her in connection with obtaining her consent for the autopsy

to be performed. The jury awarded actual and exemplary damages.

The trial court denied CHRISTUS’s post-trial re-assertion that the post-mortem claims were

barred because they were recast HCLCs and rendered judgment for the Carswells pursuant to their

election to recover on the fraud claim. It reduced the jury’s exemplary damage finding in accordance

with statutory limits.

CHRISTUS appealed. The court of appeals affirmed, sustaining the trial court’s decision that

the Carswells’ post-mortem claims were not HCLCs. 433 S.W.3d 585, 591 (Tex. App.—Houston

[1st Dist.] 2013). However, it vacated the monetary sanctions. Id. at 615. CHRISTUS filed a

motion for partial rehearing en banc. Id. at 618–19. The motion was denied, with three justices

dissenting on the grounds that the fraud claim was an HCLC and should have been dismissed

because it was based on “professional or administrative services directly related to health care.” Id.

at 622–25 (Bland, J., dissenting from denial of en banc reconsideration).

In this Court, CHRISTUS, in part, contends that the Carswells’ fraud claim is an HCLC,

presenting the position advanced by the dissenting justices in the court of appeals—that the claim

is based on “professional or administrative services directly related to health care.” See TEX. CIV.

PRAC. & REM. CODE § 74.001(a)(13). CHRISTUS’s argument focuses on the fact that the Carswells’

post-mortem claims asserted that the hospital tried to cover up its malpractice by failing to obey the

law and fraudulently obtaining Linda’s consent to an autopsy. That being so, CHRISTUS1

The Carswells do not contend that the results of the autopsy would have been different if it had been performed1

by the medical examiner.

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maintains, there is a direct relationship between the alleged medical malpractice and the claims that

CHRISTUS employees obtained Linda’s consent to the autopsy by fraud.

The Carswells respond that because neither the hospital nor Linda had authority to go

forward with an autopsy without first contacting the HCMEO and making disclosures required by

law, the autopsy was necessarily “separable from health care” and “separated from health care

providers” so it could not have been “an inseparable or integral part of the rendition of health care.”

See Tex. W. Oaks Hosp., L.P. v. Williams, 371 S.W.3d 171, 180 (Tex. 2012). They further argue that

Carswell ceased to be a patient of CHRISTUS after his death, so the autopsy is not medical care or

health care. By cross-petition, the Carswells ask for reinstatement of the monetary sanctions against

CHRISTUS. They argue that the sanctions did not constitute an arbitrary fine as the court of appeals

concluded, but rather were based on the “significant time and monetary resources” the family and

trial court were required to expend as a result of CHRISTUS’s failure to timely and properly produce

discoverable evidence. Alternatively, they argue that if the monetary sanctions are not restored, then

the issue should be remanded to the trial court for further proceedings.

II. Discussion

A. Is the Post-mortem Fraud Claim an HCLC?

When construing a statute, our goal “is to determine and give effect to the Legislature’s

intent” beginning with the “plain and common meaning of the statute’s words.” Tex. W. Oaks, 371

S.W.3d at 177 (internal quotation omitted). Whether a claim is an HCLC under the Act is a question

of law that we review de novo. Id. In determining the question, we examine the underlying nature

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and gravamen of the claim, rather than the way it is pleaded. Garland Cmty. Hosp. v. Rose, 156

S.W.3d 541, 543 (Tex. 2004).

Section 74.001(a)(13) of the Act defines “health care liability claim” as

a cause of action against a health care provider or physician for treatment, lack oftreatment, or other claimed departure from accepted standards of medical care, orhealth care, or safety or professional or administrative services directly related tohealth care, which proximately results in injury to or death of a claimant, whether theclaimant’s claim or cause of action sounds in tort or contract.

TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13) (emphasis added).

1. Professional or Administrative Services

The Act defines “professional or administrative services” as

those duties or services that a physician or health care provider is required to provideas a condition of maintaining the physician’s or health care provider’s license,accreditation status, or certification to participate in state or federal health careprograms.

TEX. CIV. PRAC. & REM. CODE § 74.001(a)(24). A hospital’s license may be suspended or revoked

for failing to comply with Health and Safety Code requirements or Administrative Code

requirements. See TEX. HEALTH & SAFETY CODE § 241.053; 25 TEX. ADMIN. CODE § 133.121. The

Carswells’ claims against CHRISTUS implicate such requirements.

First, beginning with their Third Amended Original Petition and carrying through their live

trial pleadings, the Carswells alleged that given the circumstances of Carswell’s death, CHRISTUS

was required by law to contact the HCMEO and request an inquest, which it did not do. See TEX.

CODE CRIM. PROC. art. 49.25, § 6(a)(8). Instead, it fraudulently obtained Linda Carswell’s written

permission for a private autopsy in an associated medical facility. See TEX. CODE CRIM. PROC. arts.

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49.32(a), 49.35. Second, they alleged that Carswell’s body should not have been moved without

permission of the HCMEO. See TEX. CODE CRIM. PROC. art. 49.25, § 8. Those positions are

reprised in the Carswells’ brief to this Court. By these claims, the Carswells alleged CHRISTUS

violated duties imposed on it by the Code of Criminal Procedure due to its status as a licensed health

care provider. Violation of these duties by the hospital could result in its licenses being suspended

or revoked. TEX. CODE CRIM. PROC. art. 49.25, § 14 (declaring violation of article 49.25 to be

illegal); TEX. HEALTH & SAFETY CODE § 241.053(a)(3); see also 25 TEX. ADMIN. CODE §§ 133.1(c),

133.121(1)(F).

Given the foregoing, we conclude that the Carswells’ post-mortem claims alleged departures

from accepted standards of “professional or administrative services” the hospital had the duty to

comply with or provide in order to maintain its license. But to be characterized as an HCLC, the

“professional or administrative services” must have been directly related to health care. TEX. CIV.

PRAC. & REM. CODE § 74.001(a)(13). We next consider that factor.

2. Directly Related to Health Care

The Act defines “health care” as

any act or treatment performed or furnished, or that should have been performed orfurnished, by any health care provider, for, to, or on behalf of a patient during thepatient’s medical care, treatment, or confinement.

TEX. CIV. PRAC. & REM. CODE § 74.001(a)(10).

“Medical care” is defined as

any act defined as practicing medicine under Section 151.002 [of the] OccupationsCode, performed or furnished, or which should have been performed, by one licensed

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to practice medicine in this state for, to, or on behalf of a patient during the patient’scare, treatment, or confinement.

Id. § 74.001(a)(19).

Even if persons can no longer be patients after they die, a question we need not decide today,

the inquiry does not end there. As to a claim based on professional or administrative services, the

statute does not require that the person alleging injury was a patient during the relevant period.

Neither does it require that the alleged injury must have occurred during or contemporaneously with

health care, nor that the alleged injury was caused by health care. Rather, the Act applies to a claim

for injury or death proximately caused by a “departure from accepted standards of medical care, or

health care, or safety or professional or administrative services directly related to health care.” Id.

at § 74.001(a)(13) (emphasis added). Here, the question is whether the post-mortem claims by the

Carswells were directly related to health care—that is, directly related to an act or treatment that was

or should have been performed or furnished by the hospital for, to, or on behalf of Jerry Carswell

during his treatment or confinement.

The Act does not define “directly related to,” so we look to the words’ common meanings.

See TEX. GOV’T CODE § 311.011(a); Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 501 (Tex.

2015). “Direct” or “directly,” as most applicable here, means “without the intervention of a medium

or agent” or “immediately.” BLACK’S LAW DICTIONARY 557 (10th ed. 2014); see also Sharp v. Tyler

Pipe Indus., Inc., 919 S.W.2d 157, 162 (Tex. App.—Austin 1996, writ denied). “Related” is

commonly defined as “[c]onnected in some way; having relationship to or with something else.”

BLACK’S LAW DICTIONARY 1479 (10th ed. 2014). When those definitions are combined, they yield

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the conclusion that the plain and common meaning of the phrase “directly related to” is “an

uninterrupted, close relationship or link between the things being considered.” See City of Amarillo

v. Fenwick, 19 S.W.3d 499, 501 (Tex. App.—Amarillo 2000, no pet.) (construing the phrase

“directly related to” in the context of the Texas Local Government Code).

The Carswells’ post-mortem fraud claim was essentially that immediately following Jerry’s

death, the hospital began covering up for the deficient health care provided to him. That was done,

they claimed, by the hospital’s failing to notify the Harris County Medical Examiner’s Office of

Jerry’s death and the circumstances surrounding it, but rather by the hospital immediately obtaining

Linda’s consent for an autopsy at an affiliated hospital by an associated pathology practice group.

Even though the jury refused to find that CHRISTUS negligently caused Jerry’s death, it remains that

the Carswells’ post-mortem fraud claim was that the hospital’s obtaining Linda’s consent for the

autopsy was based on and for the purpose of concealing the hospital’s malpractice that caused Jerry’s

death. Given these circumstances, the claim was directly related to acts or treatments the Carswells

alleged were improperly performed or furnished, or that should have been performed or furnished,

to Jerry during his treatment and confinement. See TEX. CIV. PRAC. & REM. CODE § 74.001(a)(10).

As such, the fraud claim was an HCLC.

The court of appeals relied on two memorandum opinions from its sister courts to reach the

conclusion that the Carswells’ fraud claim was not an HCLC. 433 S.W.3d at 610. In one, Hare v.

Graham, the plaintiff claimed the defendant doctor performed an autopsy without the surviving

wife’s consent, thereby violating her right to have her husband’s body “preserved and buried in the

condition in which he died, without her having thoughts of him being cut unnecessarily prior to his

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burial.” No. 2-07-118-CV, 2007 WL 3037708, at *1 (Tex. App.—Fort Worth Oct. 18, 2007, pet.

denied) (mem. op.). The appeals court interpreted the statute to mean that a person must be alive

in order to be a “patient,” then reasoned that because a dead body is not a patient, a person “does not

receive ‘medical care, treatment, or confinement’ after death.” Id. at *3. That being so, the court

held that the alleged failure to obtain consent for the autopsy was not an HCLC. Id. But, unlike the

Carswells’ post-mortem claim, the plaintiff in Hare was not complaining that the post-mortem

actions of the defendants were taken for the purpose of concealing deficient pre-mortem health care.

As mentioned above, in this case we are not called upon to decide whether performing an autopsy

or failing to obtain informed consent to perform an autopsy, without more, is health care, regardless

of whether the autopsy was performed in a hospital or elsewhere.

In the second case relied on by the court of appeals, Salazar v. Dickey, the plaintiff sued the

doctor who signed his father’s death certificate without an autopsy having been performed. No. 04-

08-00022-CV, 2010 WL 307852, at *1 (Tex. App.—San Antonio Jan. 27, 2010, pet. denied) (mem.

op.). The plaintiff claimed the doctor was required to order an autopsy before signing the certificate,

and because he was not present at the time of death and did not perform an autopsy, he committed

fraud by signing a death certificate indicating that the decedent died of natural causes. Id. at *3.

Citing Hare and relying on the same statutory definitions, the court determined that the claim was

not an HCLC because the plaintiff’s father was already dead when the doctor allegedly departed from

acceptable standards and practices. Id. at *4. Additionally, the decedent could not have been a

“patient,” nor could the decedent have received medical care, treatment, or confinement after his

death. Id. As was the situation in Hare, and unlike the claims here, the claims in Salazar were not

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linked to pre-mortem health or medical care of the deceased; they were based entirely on post-

mortem actions of the defendants that were directed to a dead body.

Next, the Carswells argue that their post-mortem fraud claim is not an HCLC because Linda

was not a patient. The Carswells point to our decision in Texas West Oaks, in which they urge that

we held HCLCs based on departures from standards of “medical care” and “health care” require the

claimant to have been a patient. See Tex. W. Oaks, 371 S.W.3d at 178. They argue that the phrase

“professional or administrative services directly related to health care” requires a patient-physician

relationship because it incorporates the definition of “health care.” See id. at 181 (holding that

“specific statutory directive health care claims must involve a patient-physician relationship”). The

Carswells posit that their fraud claim falls outside the scope of the definition of an HCLC because

the injuries they suffered from the hospital’s fraud did not involve an act rendered “for, to, or on

behalf of a patient during the patient’s medical care, treatment, or confinement.” We disagree.

The Act does not limit its reach to persons receiving or having received health or medical

care—it applies to “claimants.” TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13). As to professional

or administrative services, it applies when the claimed injury is directly related to health care of some

patient. See id. § 74.001(a)(10), (13). As noted above, the professional or administrative services

underlying the Carswells’ complaint were directly related to the improper health care they alleged

Jerry Carswell received, or health care they alleged he should have received but did not.

Because the Carswells’ post-mortem fraud claim is an HCLC, we next consider whether it

is barred by the Act’s two-year statute of limitations provision. See id. § 74.251(a).

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B. Limitations

The Carswells amended their pleadings on January 5, 2007, to add the post-mortem fraud

claim based on acts that occurred almost three years earlier. They make two arguments in asserting

that the claim is not barred by the Act’s two-year limitations provision. See TEX. CIV. PRAC. & REM.

CODE § 74.251(a). One is that their original petition alleged not only medical malpractice, but also

“fraud,” which encompassed the post-mortem claims. The second is that even if the post-mortem

claims are HCLCs, their 2007 amended pleadings related back to the timely filed original petition.

See TEX. CIV. PRAC. & REM. CODE § 16.068 (providing that claims raised in a subsequent amended

pleading relate back to a timely filed pleading and are not barred by limitations unless the

amendment or supplemental pleading “is wholly based on a new, distinct, or different transaction

or occurrence”).

As to the first argument, the fraud allegation in the Carswells’ original petition was one

word—“fraud”:

Plaintiffs complain that the Defendants’ conduct and omissions constituted, amongother things, medical malpractice, negligence, gross negligence, negligence per se,malice, fraud, and breach of express and implied warranties and breach of contract.

As we have set out more fully above, there were no allegations in that pleading as to post-mortem

facts or actions, nor were there any claimed damages based on post-mortem events. Rather, the

petition referred only to claims arising from “the medical malpractice . . . that ultimately resulted in

the death of Jerry L. Carswell on January 22, 2004,” the “substandard medical care [that] resulted

in the death of Jerry L. Carswell,” and “medical negligence, which proximately led to the death of

Jerry L. Carswell.” The damages sought were those accruing up until, and resulting from, Carswell’s

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death. The word “fraud,” in the context of the facts pleaded, references to medical malpractice,

Jerry’s death, and damages based on medical malpractice, simply cannot be stretched to encompass

the post-mortem fraud claim.

Our analysis of the original petition is consistent with the Carswells’ Third Amended

Original Petition in which they first asserted the post-mortem claims. In that Amended Petition, as

we have explained more fully above, pre-mortem facts are set out in a paragraph entitled “VI.

Medical Malpractice Facts.” Then, in a separately numbered section labeled “VII. Wrongful Death

and Survival Causes of Action,” CHRISTUS, as well as Drs. Pramudji and Cook and their practice

group, Memorial Urology Associates, P.A. are specifically labeled as “medical malpractice

defendants.” The next section, again separately numbered and labeled as “VIII. Post-Mortem

Facts,” details allegations as to the post-mortem actions of the hospital, its nurses, and various

physicians. Another section labeled “IX. Post-Death, Non-Medical Liability and Insurance

Improvement Act Causes of Action,” identified CHRISTUS, Hospital Partners of America, three

pathologists, and SJ Associates Pathologists, L.C. as “Post-Mortem Defendants.”

As to the second argument, the Carswells urge that if we determine the post-mortem fraud

claim is an HCLC, then it necessarily relates back to the date of their original pleadings asserting the

pre-mortem medical malpractice claims. The Carswells contend that if the fraud claim is classified

as being based on a professional or administrative service that is directly related to health care, it is

completely illogical that the claim can at the same time be based on a new, distinct, or different

transaction or occurrence from that underlying the pre-mortem medical malpractice claims.

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CHRISTUS counters that the pre-mortem claims for malpractice and the post-mortem fraud

claim, while both HCLCs, are based on separate, distinct, or different transactions or occurrences.

It contends that whether the post-mortem fraud claim is an HCLC and whether the relation-back

doctrine applies to it are different questions with different considerations. We agree with

CHRISTUS.

It is apparent from what we have set out above that the facts underlying the Carswells’ pre-

mortem medical malpractice claims (1) are separated in time from the facts underlying the claim for

damages based on post-mortem fraud, (2) are based on facts different and distinct from those

underlying the fraud claim, and (3) involve a different set of occurrences from that underlying the

fraud claim. The acts and omissions underlying the medical malpractice claims allegedly caused

Carswell’s death. The acts underlying the post-mortem claim did not, and indeed could not, have

had any causal relationship to his death. See Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113,

121–22 (Tex. 2004) (holding that when an amended petition “sets up a distinct and different claim

from that asserted in the previous petitions, the new claim does not relate back”). We conclude that

the post-mortem fraud claim does not relate back to the filing of the original petition and is barred

by the Act’s limitations provision.

C. Fiduciary Duty and Negligence Claims

In addition to finding that CHRISTUS committed fraud against Linda “in connection with

obtaining [her] consent for the autopsy to be performed on Jerry Carswell’s body,” the jury found

that the hospital failed “to comply with its fiduciary duty to Linda Carswell in connection with

obtaining [her] consent for the autopsy,” and that the hospital was negligent “in connection with

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obtaining [her] consent for the autopsy.” The court of appeals considered only the fraud finding on

which the Carswells elected to recover. CHRISTUS challenges the findings as to fiduciary duty and

negligence for various reasons, one of them being that it did not have a fiduciary duty to Linda

Carswell to begin with. But we need not consider either of those findings in depth. Given our

conclusion that CHRISTUS’s actions in connection with Linda’s consenting to the autopsy are recast

HCLCs, it follows that both the breach of fiduciary duty and negligence claims founded upon the

same factual bases are likewise recast HCLCs. See Yamada v. Friend, 335 S.W.3d 192, 197 (Tex.

2010) (“[I]f the gravamen or essence of cause of action is an [HCLC], then allowing the claim to be

split or spliced into a multitude of other causes of action would contravene the Legislature’s explicit

requirements.”). As such, they are barred by limitations for the same reasons the fraud claim is

barred.

D. Sanctions

In their cross-petition, the Carswells argue that the court of appeals erred by vacating the

monetary sanctions imposed against CHRISTUS. They contend that the trial court’s sanctions order

and the record reflect the $250,000 monetary sanction was not an arbitrary fine without evidentiary

support, as the court of appeals determined. They first assert that the sanctions order stated it was

based on the “significant time and monetary resources” expended by the Carswells—which they

argue “denotes attorney’s fees”—in developing their case after CHRISTUS did not properly disclose

evidence during discovery. Citing two court of appeals opinions, they argue that when attorney’s

fees are awarded as sanctions, the sanctions need not be supported by evidence of attorney’s fee bills.

See Prize Energy Res., L.P. v. Cliff Hoskins, Inc., 345 S.W.3d 537, 575–76 (Tex. App.—San

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Antonio 2011, no pet.); Scott Bader, Inc. v. Sandstone Prods., Inc., 248 S.W.3d 802, 816–17 (Tex.

App.—Houston [1st Dist.] 2008, no pet.). The Carswells also argue that evidence supports the

sanctions as an assessment for the trial court’s unnecessary expenditure of time on discovery matters,

which under the circumstances were properly awarded to them. In the alternative, the Carswells

argue that the court of appeals erred by reversing and rendering judgment as to the sanctions instead

of remanding the issue to the trial court for clarification. We address those arguments in turn.

First, the court of appeals did not determine that the lack of attorney’s fee bills was the sole

consideration in its determination that there was legally insufficient evidence to support the

sanctions. 433 S.W.3d at 616–17 & n.11. Texas Rule of Civil Procedure 215.2(b)(8) authorizes a

trial court to charge the party abusing the discovery process with the reasonable expenses, including

attorney’s fees, caused by the failure to obey discovery orders. These sanctions are designed to

rectify discovery abuse by compensating the aggrieved party for expenses incurred. See TEX. R. CIV.

P. 215.2(b)(8); Ford Motor Co. v. Tyson, 943 S.W.2d 527, 533 (Tex. App.—Dallas 1997, orig.

proceeding). Consequently, when a party seeks attorney’s fees as sanctions, the burden is on that

party to put forth some affirmative evidence of attorney’s fees incurred and how those fees resulted

from or were caused by the sanctionable conduct. See Scott Bader, 248 S.W.3d at 816–17; Glass

v. Glass, 826 S.W.2d 683, 688–89 (Tex. App.—Texarkana 1992, writ denied). However, while

properly proved bills showing attorney’s fees the Carswells incurred as a result of discovery abuse

might have been legally sufficient evidence to support a monetary sanction, no such evidence is

present in the record so it can be evaluated. See Scott Bader, 248 S.W.3d at 816. But here there

were not only no bills to support a finding as to the amount of time the Carswells’ attorneys

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necessarily expended as a result of sanctionable conduct by the hospital, there was no other evidence.

Nor was there evidence as to the hourly rate or other evidence of an amount that would compensate

for that time, even if the time had been proved. The Carswells’ motions and pleadings contained

various allegations as to both, but pleading allegations are not evidence.

Next, the Carswells argue that the monetary sanctions were based on attorney’s fees reflected

by the first eleven volumes of the appellate record. Rule 215.2 allows a trial court to require the

party who failed to obey a discovery order to pay “the reasonable expenses, including attorney fees,

caused by the failure” and to make such orders regarding the failure as are just. See TEX. R. CIV. P.

215.2(b), (b)(8). But to be just, a sanction must be based on a direct relationship between the

particular offensive conduct and the sanction imposed, and the sanction must not be excessive vis-a-

vis that conduct. See Petrol. Solutions, Inc. v. Head, 454 S.W.3d 482, 489 (Tex. 2014);

TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991).

Although a trial on the merits was not conducted on the Carswells’ motions for monetary

sanctions, hearings were. The Carswells do not complain that they were not afforded full

opportunity to present evidence supporting the sanctions they sought for particularized sanctionable

conduct by CHRISTUS. See 433 S.W.3d at 617 (noting that a party should be afforded an

opportunity to present evidence in support of its claims and analogizing uncontested trials and

uncontested hearings); Mobil Oil Corp. v. Frederick, 621 S.W.2d 595, 596 (Tex. 1981). As the court

of appeals noted, not only was there no evidence to prove the amount of attorney’s fees and

expenses, the trial court did not explain its rationale behind the amount imposed as monetary

sanctions or the relationship between the sanctions and particular conduct of CHRISTUS. And,

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given the lack of evidence, the court of appeals concluded it had no way to determine whether the

sanction was just or excessive. 433 S.W.3d at 616–17 (citing TransAmerican, 811 S.W.2d at 917).

It further concluded that remand was not appropriate because no evidence supported the sanctions.

Id. at 617 (citing Dolgencorp of Tex. v. Lerma, 288 S.W.3d 922, 929 (Tex. 2009) (“Generally, if an

appellate court holds there is legally insufficient evidence to support a judgment after a trial on the

merits, the proper disposition is to reverse and render judgment.”)).

The Carswells cite cases from various Texas courts of appeals, as well as this Court’s

opinions in Nath v. Texas Children’s Hospital, 446 S.W.3d 355, 371–72 (Tex. 2014), and Low v.

Henry, 221 S.W.3d 609, 621–22 (Tex. 2007), in support of their argument that the court of appeals

should have remanded the issue of monetary sanctions to the trial court for reconsideration. See,

e.g., Graves v. Tomlinson, 329 S.W.3d 128, 151–52 (Tex. App.—Houston [14th Dist.] 2010, pet.

denied); State Office of Risk Mgmt. v. Foutz, 279 S.W.3d 826, 838 (Tex. App.—Eastland 2009, no

pet.); Van Es v. Frazier, 230 S.W.3d 770, 784 & n.5 (Tex. App.—Waco 2007, pet. denied). The

authorities they cite are distinguishable. While the courts of appeals in those cases remanded the

issue of monetary sanctions, there was some evidence in those records as to the propriety and amount

of the sanction. Similarly, in Nath and Low, there was some evidence in the records for the trial

courts to have considered in awarding sanctions. Nath, 446 S.W.3d at 371–72; Low, 221 S.W.3d

at 621–22 (determining that the trial court was within its discretion to award monetary sanctions, but

remanding the issue regarding the amount imposed based on the trial court’s failure to explain how

it assessed the amount of the sanction).

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Finally, citing Low, the Carswells argue that the trial court based monetary sanctions on the

waste of judicial resources resulting from the hospital’s discovery abuse. In Low, we were

considering the amount of a monetary sanction under Chapter 10 of the Texas Civil Practice and

Remedies Code for filing frivolous pleadings. Low, 221 S.W.3d at 620–21. We referenced a list

of factors the American Bar Association recommended trial courts should consider in assessing the

amount of monetary sanctions to impose. Id. at 620 n.5. The factor in that list most relevant to this

case is the “burdens on the court system attributable to the misconduct, including consumption of

judicial time and incurrence of juror fees and other court costs,” which the Carswells characterize

as the “waste of the trial court’s time and resources.” See id. The Carswells primarily base this

argument on federal cases interpreting federal rules, which allow courts to impose monetary

sanctions as a penalty for wasting judicial time and resources. Those sanctions are paid directly to

the court. See, e.g., Seneca Res. Corp. v. Moody, 135 B.R. 260 (S.D. Tex. 1991) (interpreting

Federal Rule of Civil Procedure 11); Thiel v. First Fed. Sav. & Loan Ass’n, 646 F. Supp. 592, 598

(N.D. Ind. 1986) (same); Huntington Nat’l Bank v. Bruinsma, 475 B.R. 602, 610–12 (Bankr. W.D.

Mich. 2012) (interpreting Federal Rule of Bankruptcy Procedure 9011). The Carswells urge us to

consider the formula adopted by federal courts for calculating and awarding monetary sanctions for

wasting judicial resources. See, e.g., Bruinsma, 475 B.R. at 610–12; Thiel, 646 F. Supp. at 598. We

decline to do so. Our rules do not provide for sanctions based on how much time courts spend on

hearings. See TEX. R. CIV. P. 215.2(b)(8). Trial courts have discretion to impose monetary sanctions

within limits, but any sanctions must be directed toward remedying prejudice caused to the innocent

party. See TEX. R. CIV. P. 215.2; Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882 (Tex. 2003).

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III. Conclusion

We conclude that (1) the post-mortem fraud claim is a health care liability claim; (2) the

claim is barred by the Act’s two-year limitations period, as are the claims for breach of fiduciary duty

and negligence that are based on the same underlying facts; and (3) the court of appeals did not err

by reversing and rendering judgment as to the monetary sanctions. Accordingly, we reverse in part,

affirm in part, and render judgment for CHRISTUS.

________________________________________Phil JohnsonJustice

OPINION DELIVERED: May 20, 2016

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